Between the 4th and the 15th November 2024 I TE KOTI MANA NUI O AOTEAROA or otherwise known as the Supreme Court, heard argument in a case involving Maori access to the New Zealand coastline. There are twenty-seven parties to the litigation represented by 37 lawyers. Judgment was given on the 2 December, an extraordinary short time given the length of the judgment. The Court comprising five judges was unanimous. The judgment comprises 229 paragraphs with the result the appeal brought by the Attorney General is allowed. The Court will issue a further judgment next year dealing with how the foreshore and seabed rights will be divided up between the claimants in accord with the reasoning contained in the judgment.
The background to this litigation is the Marine and Coastal legislation passed by the John Key National government repealing the Helen Clarke Labour government legislation which decreed that the New Zealand coastline is vested in the Crown as it affects Maori interests. The particular circumstances of the present litigation is a majority decision of the Court of Appeal in which two of the three judges held that if the legislation was given the meaning to be drawn from the plain wording of the Act then few if any claims would be successful. They therefore refused to apply the wording of the Act and granted the applications.
The Attorney General as the guardian of the Sovereignty of Parliament appealed. That this was necessary is extraordinary, given that the clearly expressed words of a statute must be applied whether the Judges like it or not. The question before the Court required only that the Court of Appeal apply the words of the statute, as had Justice Miller the dissenting Judge, and decide the case accordingly.
Against this background the Supreme Court has embarked on an extensive analysis of the claimed connection of pre 1840 Maori tribes and families with what it describes in the judgment as living close to coastline and enjoying extensive marine vistas with associated fishing rights. This proximity, it is claimed carries with it, spiritual connections which only Maori people experience generally subsumed under such terms “Tikanga and Mana.” Neither of which have any meaning to non Maori. In an attempt to give some legislative basis for these largely spiritual views the Key Government legislated that such values exist but to be recognised in law must have been enjoyed by a claimant from the time of the 1840 agreement with some tribal Chiefs down to the time of the making of a claim, without substantial interruption. In accepting this possibility Parliament was careful to protect the rights of all New Zealanders to access and enjoy the recreation and commercial use of the coastline. But significantly the rights conferred on successful Maori claimants also include a number of other benefits such as the right to specified minerals, and to be heard on Resource Consent applications affecting the area in question. Both of which carry monetary connotations.
The problem with the legislation is that the rights claimed have in the overwhelming number of cases been fatally interrupted since the time of European settlement. And in this sense the majority judgment in the Court of Appeal that very few applications will be successful is probably correct. It is also plain that this was the intention of Parliament.
The Supreme Court, if it had performed its duty according to law, would have simply arrived at this conclusion and that would have been the end of the matter. But instead it is a lengthy essay which reads like a cross between a sociological disquisition and a consultant’s report that might have been commissioned by the Office of Maori Crown relations under the previous government. It is an exploration of Maori spiritual values, as far as they can be ascertained such as taking a “holistic view,” whatever that means on the facts, and exploring notions of Tikanga and Mana. The result is that the judgment is a blatant exercise in political interference in the legislative process.
The Judges must have been aware of the outcry which followed the Court of Appeal judgment leading as it did to the introduction of the Marine and Coastal Area Bill amending the Foreshore and seabed legislation although I note that to clarify the s 58 tests of “uninterrupted occupation and enjoyment” deleting any reference to “spiritual values.” Whether or not the amendments achieve Parliament’s intention is outside the scope of this article, but it is clear from the intervention of Christopher Finlayson that the consequence of the Supreme Court decision will serve as an attempt to persuade the government to abandon the bill currently before the House, and allow the contested legislation to play out. This will have disastrous consequences.
As the present litigation illustrates the inventive capacity of claimants and their lawyers for these valuable rights which are to the detriment of all New Zealanders knows no bounds, relying as it does on notions such as Tikanga and Mana. It is clear beyond any doubt that these are convenient terms which mean what the claimants say they mean. They are the antithesis of the Rule of Law which requires that the legal principles relied on in any litigation must be certain, knowable in advance and applicable equally to all citizens. This introduction of notions of spirituality and ancient tribal practices for which there is no written record merely the recollections of claimants and their witnesses is the anthesis of a Rule of Law.
It becomes an open-ended lottery depending on the proclivities of the Judge. Given that these are notions which have been introduced into litigation by one or two judges according to their personal beliefs as to what is fair and right in relation to all things Maori it is crucial that Parliament acts by making it clear that the” spiritual values” of any group in society commendable as they may be for personal reasons have no place in the Common Law. As with the Sovereignty issue we have reached a tipping point. The balance between Parliament and the Courts must be urgently restored if the notion of one law for all is to be preserved. Failure to do so will result in anarchy.